Stockton v. State

• Decision Date: 24 November 1920
• Docket Number: (No. 5979.)
• Citation: 225 S.W. 514,88 Tex. Cr. R. 194
• Parties: STOCKTON v. STATE.
• Court: Texas Court of Criminal Appeals

225 S.W. 514

88 Tex. Cr. R. 194

STOCKTON v. STATE.

(No. 5979.)

Court of Criminal Appeals of Texas.

November 24, 1920.

Appeal from Cameron County Court; H. L. Yates, Judge.

H. J. Stockton was convicted of misdemeanor, and he appeals. Reversed and remanded.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

In this case appellant was convicted in the county court of Cameron county of a misdemeanor, and his punishment fixed at a fine of $10.

No motion for a new trial appears to have been made by appellant, and no motion was made to quash the complaint or information; but appellant made a motion in arrest of judgment, raising two questions, which are presented and relied upon in this court. The first complains because of the fact that in the body of the complaint, and affixed thereto, appears the name of Joe Reid, as the maker of said affidavit and complaint, while in the jurat it is recited that said complaint is "sworn to and subscribed by A. B. Cole." This would be a sufficient objection to the complaint, if made in a motion to quash, unless the state saw fit to amend; but it has been held that, if such objection is made before the trial court, the mistake in the name of the affiant, as set out in the jurat, may be amended. Flournoy v. State, 51 Tex. Cr. R. 29, 100 S. W. 151. This being the case, we hold that this objection comes too late after judgment, and that we cannot sustain same.

It was also raised by motion in arrest of judgment, and is here presented, that the date of the offense, as alleged in the information, is different from that alleged in the complaint. The original papers appear to have been sent up with the record, and from our inspection of same we have concluded that the objection was well founded. The complaint alleges the offense as being committed on the 22d day of November, 1919, while the information alleges same to have taken place on the 2d day of said month. It seems to have been almost uniformly held by this court that the time of the offense is a matter of substance, and that the same cannot be amended. Drummond v. State, 4 Tex. App. 150; Sanders v. State, 26 Tex. 120; Goddard v. State, 14 Tex. App. 566; Huff v. State, 23 Tex. App. 291, 4 S. W. 890.

It is also pointedly held in many cases that a variance between the complaint and information as to the time of the offense is fatal. Hoerr v. State, 4 Tex. App. 75; Hawthorne v. State, 6 Tex. App. 562; Hefner v. State, 16 Tex. App. 573; Huff v. State, 23 Tex. App. 291, 4 S. W. 890; Baumgartner v. State, 23 Tex. App. 335, 5 S. W. 113; McJunkins v. State, 37 Tex. Cr. R. 117, 38 S. W. 994; Jennings v. State, 30 Tex. App. 428, 18 S. W. 90.

In Cole v. State, 11 Tex. App. 67, Judge Winkler says of such variance:

"The demands of the law seem to be met when there is a substantial...